The Integrity 'Gag' Amendment v. Free Speech

Much has been written about the proposed amendment to the integrity complaint process, approved last week by the Accountability and Transparency Sub-committee, that would force complainants to give up their right to free speech by requiring them not to talk to the media before the investigation is completed.

The motion was approved by the Chairman Councillor Lloyd Ferguson, Councillor Terry Whitehead, Councillor Judi Partridge and citizen members David Broom and Laura Ryan. It was opposed only by citizen member Joanna Chapman.

While others have written about this issue, I will give you my perspective from a very personal, first-hand level. After all, I am the person who filed the most recent complaint and dared on this occasion to speak to the media.

For the record, the investigation into my complaint is well into its fourth month with no end in sight.

Why I Went To The Media

First, let's be clear about the sequence of events. On the evening of Thursday, December 15, it was reported on the news that the city had not received a single integrity complaint with respect to Mayor Bratina's actions around his chief of staff's pay increase.

Like many citizens, I believed there needed to be a formal investigation but was waiting for someone else to initiate it. I can state for the record that I would not have filed my complaint if someone else had started the process.

That weekend, I did my research and typed my complaint affidavit. On Monday morning, I paid my $100.00 and filed the complaint. Later that same afternoon, I emailed my affidavit to the mayor, to all members of council, to the media, and to every citizen I had on my mailing list that I thought might be interested.

I believe that once I filed my affidavit, I made it a public document. There is nothing private or confidential in it, nor should there be. I believe the public had a right to know not only that a complaint had been filed but also what the exact allegations were.

There may have been others prepared to file a complaint. There may have been others wanting to file but with different allegations. I do know, based on comments made to me and posted online, that a great many people wanted to know that a complaint had been filed and many took some satisfaction knowing there would be a formal investigation.

I also spoke to the media for two reasons. First, the obvious was to answer any questions as openly and honestly as possible to minimize any misconceptions. People are free to draw their own conclusions, but at least I was willing to state as many facts as possible from my perspective.

Second, we live in a society where today's news becomes yesterday's news incredibly fast. I did not want that to happen to this story. I believe this issue is very important to the citizens of Hamilton and as such should not die an early death or be "swept under the rug".

Little did I know that the subsequent actions of both the mayor and councillors would do more to keep this issue on "the front page" than I could ever have hoped to achieve.

No Progress on Complaint Investigation

The second time I spoke to the media was in mid-March. On February 17, I sent an email to Mr. Basse that contained the following statement:

I understand that your investigation needs to be thorough and complete in order to be objective and fair but it also needs to be timely to be effective and meaningful. I am concerned that your investigation into my complaint is not proceeding in a timely fashion.

Three weeks later on March 7, with no sign of progress, I emailed council with the following request:

First is that council officially request Mr. Basse report on: A) Why is this investigation taking so long? B) What is the current status of this investigation? and C) When will the final report be issued to council?

I was then approached by both the Hamiltonian and Raise The Hammer to comment on the complaint process, and I did. For the record, today, April 4, is day 108 into this investigation and I still have not received an answer to a single question.

One last comment regarding confidentiality. The one and only time I met with Mr. Basse was in our home on Wednesday, December 21, 2011. At the start of that meeting, we discussed confidentiality.

Mr. Basse stated that he was required to treat everything I said as confidential. I stated that I was not, and unless we specifically agreed to go off the record for a particular item, everything we discussed would be on the record and I would treat it as such. The meeting proceeded with those terms understood.

Why This is a Disgraceful Amendment

The most important pillar of a democratic society is the right of free speech. The right of free assembly is a close second, but there is no point in forming a group unless you are free to collectively express an opinion.

The proof that these statements are true is that in every single case where a dictator seizes power, the very first thing they do is take control of the media in an attempt to stifle free speech.

Likewise, the very first thing that happens when a new democracy is formed is that freedom of speech is enshrined as a fundamental right. In fact, most would agree that without free speech a democratic society can simply not exist.

Make no mistake: this absurd amendment is a direct assault on free speech. The reason it is disgraceful is that the very people that were elected by our democratic process are the elected officials that are proposing, supporting and defending the "gag" amendment.

The Bottom Line

There are problems with the complaint process, but this amendment does nothing to correct them.

The most notable problem with the process is the length of time it takes to get a final report or any report. In a February 17, 2012 email to Mr. Basse, I wrote:

I understand that your investigation needs to be thorough and complete in order to be objective and fair but it also needs to be timely to be effective and meaningful. I am concerned that your investigation into my complaint is not proceeding in a timely fashion.

In a March 7 email to council, I wrote that the Integrity Complaint Process needed to be changed by adding timelines to the investigation process. My suggestion was to require status reports every 30 days with a goal of issuing the final report within 90 days.

On Monday, Councillor Whitehead complained, "In the paper it (the complaint) is front page news, when the councillor is cleared the story is buried."

The reason for this is the months that elapse between the complaint and the report. In a January 18, 2011 article, Councillor Whitehead said, "I think we need to define tighter timelines for reporting".

Now, fourteen months later, Councillor Whitehead has made a proposal that will require the integrity commissioner to make a decision within 60 days of receiving a complaint - or make a specific request to council for additional time.

The question is, why has it taken the Accountability and Transparency Sub-committee fourteen months to bring forth this proposal?

I strongly believe the City of Hamilton needs an Integrity Complaint Process that works. The current process is flawed and needs to be fixed, not eliminated.

The "gag" amendment effectively eliminates the complaint process. Why would anyone pay a $100 to give up their right to free speech?

We will have an Integrity Commissioner in name only. We will effectively re-join the majority of municipalities who, according to Councillor Whitehead, do not have an Integrity Complaint Process.

Does anyone else think this is a step in the wrong direction? I do - even though, had the gag provision been in effect last December, I would now have an additional $100 in my pocket and Mr. Basse would have fewer taxpayer dollars in his pockets.

One last comment:

I think it is amazing, bizarre and ironic that Mayor Bratina's unacceptable actions in the last few months that resulted in him being censured by council has also resulted in the Accountability and Transparency Sub-committee proposing an amendment to the Integrity Complaint Process that limits a citizen's right to free speech.

How did we get here from there?

Brian Hatch was was born at St. Joe's and raised in Hamilton, first in the north end and then on the mountain. He went to Hill Park, then graduated from MacMaster with a B.Eng. (Mechanical). He worked in various management positions at Stelco for 30 years until his retirement in 2002.

8 Comments

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I think confidentiality is a reasonable expectation while due process works. The issue here is the length of time it is taking. There are plenty of times in life -- sometimes legally, sometimes ethically that we are expected to keep certain information in confidence. A jury, boardroom/business stuff, family and friends, this is not a coverup, there is a process underway.

In an age where nothing is private anymore (facebook, twitter) it's no wonder why we think all laundry should be publicly aired. I just think that isn't always the case. I personally think you did the right thing filing a complaint but perhaps over stepped by telling everyone that you did.

With no thought whatsoever to the specifics of the complaint, I still think you're justified in speaking to the media, Brian.

The A&T committee had the option to strengthen the accountability of the Integrity Complaint process while simultaneously raising the bar on complaints, but instead they only satisfied themselves.

Trey, you're right, confidentiality is reasonable, but so is a fair and prompt resolution to complaints. Unfortunately for Hamiltonians, Council wants to eat its cake and keep it, too: raising the bar for citizen complaints while doing nothing to increase its accountability to those people who pony up the $100 (and, now, keep their mouths shut). They can still hide behind an opaque process and an Integrity Commissioner who may take months to complete an investigation.

And really, I find council's approach to 'airing dirty laundry' very self-serving, disingenuous--a sweet double-standard. Councilors are happy to use the media as a loudspeaker for their thoughts and opinions, and to promote their personas, but when a citizen wants a level playing field, and uses media exposure to hold politician's feet to the fire (after they've dragged them for so long), it's suddenly inappropriate. Puh-lease.

Media exposure is a double-edged sword, and council just needs to suck it up and take their lumps in the name of democracy. To crudely paraphrase Matthew 26:52: For all they that take up publicity shall perish by publicity.

This was posted yesterday in a different Comments thread. It may be of interest here too:

By RenaissanceWatcher (registered)
Posted April 03, 2012 at 20:17:39

Integrity Commissioner Earl Basse is scheduled to make a presentation to city council at the GIC meeting tomorrow morning on the subject of what constitutes a conflict of interest. Perhaps he can also address the accountability and transparency issue relating to complaints made to his office. One hopes that the media will be in attendance in person or online to hear Mr. Basse's presentation and report on it.

Yes absolutely, I believe you are 100% justified in going public with your complaint. Besides, the jury is already out on our Mayor and the verdict is verily in: Bob is as guilty as sin.

How did we get here from there?

The Integrity Commissioner is a faux pas position that was never meant to solve anything, the title for Basse is little more than a gaffe. This was created to make IT look (in the eyes of the public) like Hamilton was determined to fix accountability and transparency in their locally dysfunctional governance. You were supposed to sit tight and wait while the wheels of government spin out of control justifying their due process with six figure paycheques. I appreciate your effort nonetheless but as for your one hundred bucks, tough luck, you might as well give that a kiss. Someone's gotta pay for this!

The point is not the complaint. But Brian went public the same day after filing it. A given period of reasonable time is acceptible to keep confidentiality. After 3 months and Brian heard no ruling yet, then by all means go public.

It's been 4 months now and his complaint shouldn't be sequestered any longer. Had Brian gone public for the first time now, there wouldn't be an issue. That's why I think the issue is the time it takes to make a ruling, but this is Hamilton, nothing happens in a reasonable time frame.

We want fair rulings, and by going to the media, the media opinions have a chance of clouding judgements. Let due process work. There is nothing worse than a trial by media. You and anyone would want the same due process applied to you, if it were reversed.

By response (anonymous) | Posted April 04, 2012 at 19:45:46
in reply to Comment 75706

Most judicial or quasi-judicial processes are public. Once the charges are laid the thing is open for anyone to inquire about. That's the way it should be. There is confidentiality around evidence and there are good reasons for parties not to talk to the press since it can feed back into the process - in a way harmful potentially to BOTH sides. But what is a gag order going to do? And what's the next step? Maybe the Spec shouldn't be allowed to report independently on a complaint because there's a threat people will read it the wrong way. Maybe we should just ban the media since they cause so much trouble.

Let's be clear: there is no evidence this bias exists and is actually harmful to councillors. Terry Whitehead was found guilty of defamation and got re-elected handily. There is no reason to think that council is any more likely to be the brunt of defamatory action than citizens are at the hands of council, as we have seen in the past. This is an INSANE amendment. It's only saving grace is that it is so laughably amateurish that it stands no chance of becoming law, or at least not for long. Its only effect will be to cement the ineptness of municipal councillors in public opinion and drive up apathy. These people are demonstrating that they have no capacity to run a democratic body.

To me, this all sounds a little too much like former Italian PM Berlusconi trying to get himself and other ministers legal immunity because his many corruption trials were "taking too much of his time away from running the country".

I certainly don't think all dirty laundry should be aired, but these are public officials in public institutions. That kinda implies a public interest.

"Today, the notion of progress in a single line without goal or limit seems perhaps the most parochial notion of a very parochial century."
— Lewis Mumford